Oklahoma’s chapter of Americans for Prosperity (AFP) plans to use a new pro-business judicial evaluation to critique four members of the state Supreme Court who are facing retention votes in the November election, CapitolBeatOK has learned.

Asserting that the spread of civil litigation and expansive tort liability negatively affects the economy, the state Chamber unveiled the critical evaluation of Oklahoma Supreme Court members last week.

The state Chamber’s CEO, former state Rep. Fred Morgan, told CapitolBeatOK his group entered the arena of judicial evaluation to provide more information to citizens because in the Sooner State “judges are on retention ballots, and voters have a right to more information before casting their ballot.”

Stuart Jolly, state director for AFP-OK, said this week, “Justices Yvonne Kauger and James Edmondson voted to expand the taxation of intangibles — which is the reason we have State Question 766 on the ballot, to overturn their decision and this new tax. The other two justices were not on the court at that time [2009] but are ultra-liberals, Justices Douglas Combs and Noma Gurich.”

Jolly did not say how extensive his group’s efforts to criticize the four justices would be.

In the Chamber’s evaluation, Kauger and Edmondson had scores of 31 and 32, respectively, on a scale of zero to 100. Combs and Gurich, each on the court for a short time, received “provisional scores” of 22 and 32.

The scoring was done by staff at the Judicial Evaluation Institute, a Washington, D.C. group. Each of six individual areas of law assessed was reviewed and “signed off on” by an Oklahoma lawyer specializing in that particular area. That lawyer was chosen by the Chamber’s Oklahoma Civil Justice Institute.

While two members of the state High Court garnered positive scores – voting to limit liability roughly 70 percent of the time — five justices earned scores under 32 percent in the evaluation. Two more justices have served only a short time and voted on a minority of the cases evaluated, but had “provisional” scores of 22 percent and 32 percent. Coordinating the evaluation was the Oklahoma Civil Justice Council, a new arm of the state Chamber. Last week, the editorial page of The Tulsa World criticized the evaluation as “an arbitrary exercise.”

Other critics of the evaluation system include bar associations, Charlie Meadows of the Oklahoma Conservative PAC, and state Rep. John Bennett, a Sallisaw Republican. He has criticized the Chamber and its council, saying judges are supposed to be impartial.

Neil Coughlan of the Judicial Evaluation Institute of Washington, D.C. defended the analysis. Coughlin’s institute performed the research for the council. Six areas of jurisprudence touching economics were studied, including employment, medical malpractice, product liability, insurance, other liability issues and workers’ compensation.

Joining Coughlan to unveil the evaluation at a recent Capitol press conference was state Chamber President Fred Morgan. Coughlan took no position, pro or con, on social issues or questions of criminal law.

In response to questions from CapitolBeatOK, Coughlin said the breadth of the research, and “the law of large numbers” yield valid analysis on the group’s central concern, which is whether or not a “justice’s decisions have had the effect of restraining the spread of liability.”

The 145 cases examined dating from 2006 to several weeks ago, were scored equally, Coughlan said.

No added weight was given to particularly significant outcomes. Coughlan said he and other analysts assume “every judge is intelligent and wants to be fair.”

While the analysts looked for instances where justices disagreed, leading to inclusion of a number of cases where the nine-member court had as many as three or four dissenters, unanimous or near-unanimous rulings were also part of the study. Coughlan observed that often “justices aligned on civil liability are not necessarily aligned on other issues.”

Morgan said six Oklahoma lawyers specializing in the evaluated areas reviewed the analysis before its release, and supported its conclusions. In response to questions, however, the identities of the state-based reviewers were not disclosed. Defending that decision, Morgan noted that lawyers who evaluate judges for bar associations also customarily retain anonymity.

In defense of non-disclosure, Morgan agreed that the judicial function is challenging, saying “judges looking at the very same set of facts with the same rule of law to guide them often rule in differing ways.”

The evaluation, he said, aims to help voters discern “if our Supreme Court judges are following the Constitution and deciding cases based on the laws passed by the Legislature and signed by the governor, or are they expanding liability and creating new law.”

In response to several questions, Morgan said neither the council nor the Chamber planned to support or oppose justices based on the evaluations.

However, he said at the time of that conversation with state Capitol reporters that other groups might use the evaluation for recommending votes for or against judicial retention. This week's announcement from AFP fulfills Morgan's anticipation.

The highest individual ratings went to Chief Justice Steven Taylor and Justice James Winchester, each getting 69 percent. In addition to Justices Combs (22) and Gurich (32), other formal rankings and percentages for the justices were: John Reif, 30; Joseph Watt, 26 and Tom Colbert, 21.

A similar study focused on the state Court of Civil Appeals is scheduled for release within the next two weeks, Morgan said.

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